Ex Parte McKay

819 S.W.2d 478, 1990 Tex. Crim. App. LEXIS 137, 1990 WL 130497

• Court: Court of Criminal Appeals of Texas
• Decided: September 12, 1990
• Docket: 70850
• Status: Published

Opinions

OPINION

MILLER, Judge.

This is a post-conviction application for writ of habeas corpus relief pursuant to Article 11.07, V.A.C.C.P. Applicant was convicted by a jury on a plea of not guilty of capital murder. See V.T.C.A., Penal Code Section 19.03(a)(2). On August 5, 1982, the trial court imposed the death penalty upon the jury’s affirmative answers to the three special issues submitted pursuant to Art. 37.071, V.A.C.C.P. On direct appeal, applicant’s conviction was affirmed by this Court on October 2, 1985, in a published opinion. McKay v. State, 707 S.W.2d 23 (Tex.Crim.App.1985), reh’g denied.

Following applicant’s appeal, his petition for writ of certiorari was denied by the United States Supreme Court on October 6, 1986. McKay v. Texas, 479 U.S. 871, 107 S.Ct. 239, 93 L.Ed.2d 164 (1986). Applicant was then denied state habeas corpus relief on February 27, 1987, and again on March 3, 1987. Finally, applicant’s petition for writ of habeas corpus presented in federal district court was dismissed by agreement on November 3, 1988, in order to permit applicant to file an amended application for writ of habeas corpus in this Court. We granted applicant’s application solely on the issue of whether the trial court erred in its ruling restricting the scope of voir dire examination.¹ Applicant contends that his ability to question prospective jurors was limited in such a fashion as to violate his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Texas Constitution.

No evidentiary hearing was held in this matter. The trial judge entered an order expressly adopting the proposed findings of fact and conclusions of law submitted by the State in its response to applicant’s writ application. Those findings conclude that applicant’s application for habe-as corpus relief was without merit and that applicant was not denied any state or federal constitutional rights. We are not bound by the trial judge’s conclusions, however, if unsupported by the record. Ex Parte Adams, 768 S.W.2d 281, 288 (Tex.Cr.App.1989). The parties in the present case cite identical portions of the record with regard to the grounds for relief presented by applicant, and we are unable to find any discrepancies. Based upon the record so presented, we find that the trial court’s conclusions are unsupported. We further find, for the reasons stated, that applicant’s claim is cognizable under habeas corpus. We will grant applicant relief.

The record shows that on July 15, 1982, during the course of applicant’s trial, the trial judge instructed the attorneys “not to inquire of the prospective juror’s interpretation, definition or understanding of terms such as deliberately, probability, reasonable doubt, criminal acts of violence.” The trial judge went on to say that the terms “are not statutorily defined, and they are to be taken as understood in common language, and the jurors are supposed to know such common meanings.... And therefore I will ask you not to question them along those lines.” After applicant had exercised his fifth peremptory challenge to prospective juror Robert Berg, the State had exercised six (6) peremptory challenges, and four jurors had been selected, the record further reflects the following colloquy:

THE COURT: On the record. Counsel for the State has inquired of the Court to be a bit more specific here in its ruling to whether or not defense counsel is prohibited from asking the question, ‘If you have found someone guilty of intentionally killing another human being without justification, could you ever answer no to the question which asks was it done deliberately?’

While this is not specifically asking the definition of the common term deliberately, I feel this is indirectly doing what the Court is asking you not to do directly, and I will ask you not to ask that question.

MR. HARRISON [Defense Counsel]: Your Honor, to which we — may we have a running objection to the Court’s ruling.

THE COURT: Yes, you may, and I overrule it.

Following the above ruling, thirty-five (35) prospective jurors were interrogated.

Applicant maintains that the above ruling unduly and unconstitutionally limited his ability to properly question prospective jurors. Although applicant’s attorney preserved any error by making a running objection ² to the trial court’s ruling, applicant did not contest the ruling on direct appeal. Thus, before reaching the merits of applicant’s claim, we must decide whether this issue may be raised in a death penalty case for the first time by application for a writ of habeas corpus.

It is well-settled in this state that “[traditionally, habeas corpus is available only to review jurisdictional defects ... or denials of fundamental or constitutional rights.” Ex Parte Banks, 769 S.W.2d 539, 540 (Tex.Crim.App.1989) (citations omitted). In Banks, we held that where the applicant complains that a venireman was improperly excused following a challenge for cause pursuant to Art. 35.16, V.A.C.C.P., such claim could not be asserted via habeas corpus since it involves a procedural statute and not a jurisdictional defect or constitutional consideration. Banks, 769 S.W.2d at 540.

However, not all constitutional errors cause the level of harm necessary to warrant cognizability under a writ of habe-as corpus. We have held that although a habeas corpus application may be predicated on violations of state constitutional rights, the claim may not be cognizable via habeas corpus when the alleged error, if committed, is nevertheless subject to a harm analysis under Texas Rule of Appellate Procedure 81(b)(2). Ex parte Truong, 770 S.W.2d 810 (Tex.Cr.App.1989); Ex parte Dutchover, 779 S.W.2d 76 (Tex.Cr.App.1989). As stated in Truong:

Therefore, contrary to the contention advanced by applicant, this Court has determined that giving the unconstitutional instruction on parole law did not render the verdict of the jury assessing punishment invalid nor the judgment based in part of that verdict void. To give the instruction may be harmful indeed, but is no more than reversible error. That is to say, the judgment is at best voidable, and as such is not subject to a collateral attack by writ of habeas corpus.

Inasmuch as applicant will be unable to demonstrate that including an unconstitutional instruction on parole law in a charge on punishment ... so fatally infected the entire punishment proceeding as to render the resultant sentence invalid and judgment void, ... we hold that his “Rose claim” of error is not cognizable in a postconviction habeas corpus proceeding, and thus will not be entertained, under Article 11.07.

Truong, 770 S.W.2d at 813. Implicit in these holdings is that habeas corpus is limited to those constitutional errors, at least those pursuant to the state constitution, that are so exceptional or fundamental that they are not susceptible to a harm analysis, or that so fatally infected the entire [punishment] proceeding as to render the resultant sentence invalid and judgment void.

Numerous other cases have discussed the merits of habeas corpus claims that certain errors have fatally infected the proceedings. Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex.Cr.App.1985) (charge error that so infected the trial procedure that applicant was denied a fair and impartial trial is cognizable on habeas corpus); Ex parte Coleman, 599 S.W.2d 305 (Tex.Cr.App.1978) (charge error that infected the entire trial such that the resulting conviction violates due process is cognizable on habeas corpus); Ex Parte Aaron, 691 S.W.2d 680 (Tex.Cr.App.1985) (failure of the State or trial judge to sign waiver of jury contemplated in Articles 1.13 or 1.15, Y.A.C.C.P., is per se not cognizable if evidence shows those parties’ consent or approval); Ex parte Ashcraft, 565 S.W.2d 926 (Tex.Cr.App.1978) (sufficiency of evidence not cognizable); Ex parte Moffett, 542 S.W.2d 184 (Tex.Cr.App.1976) (allegation of no evidence is cognizable on writ of habeas corpus because it results in a violation of due process); See also Ex parte Brandley, 781 S.W.2d 886 (Tex.Cr.App.1989) (Campbell, J., dissenting) (newly discovered evidence not fit subject matter for the exercise of state or federal habeas corpus); etc.

This list is anything but exhaustive, but suffice it to say that while there is no bright line rule showing just which errors are or are not “a violation of due process cognizable on writ of habeas corpus”, are or are not “so exceptional or fundamental that they are not susceptible to a harm analysis”, or have or have not “so fatally infected the entire [punishment] proceeding as to render the resultant sentence invalid and judgment void”, certainly many errors do fall into these “categories” and thus are cognizable on writ of habeas corpus despite the principle that the great writ should not be used as a substitute for appeal. Banks, 769 S.W.2d 589. The question to be answered then is: Does the voir dire error of the case at bar fall into one or more of these “categories”?

The constitutionally guaranteed right to counsel encompasses the right to question prospective jurors in order to intelligently and effectually exercise peremptory challenges and challenges for cause during the jury selection process. Mathis v. State, 167 Tex.Crim. 627, 322 S.W.2d 629, 631 (Tex.Cr.App.1959); Gardner v. State, 730 S.W.2d 675, 689 (Tex.Cr.App.1987); Smith v. State, 703 S.W.2d 641, 643 (Tex.Cr.App.1985); and cases cited therein. To that end, trial judges should allow defendants much leeway in questioning a jury panel during voir dire. At the same time, however, we have afforded trial courts the ability to control the voir dire process if sound discretion would compel a trial judge nevertheless to restrict the questioning in the interest of conducting an orderly and expeditious trial. See, e.g., Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974) and McManus v. State, 591 S.W.2d 505, 520 (Tex.Cr.App.1980) (not abuse of discretion to disallow duplicitous questions); Clark v. State, 608 S.W.2d 667, 669 (Tex.Cr.App.1980) (trial court can set reasonable time limits); Abron v. State, 523 S.W.2d 405, 408 (Tex.Cr.App.1975) (trial court can set reasonable time limits, restrict repetitious or vexatious questions, restrict questions asked in improper form, restrict questions directed at personal habits of jurors). Accordingly, a trial court’s decision to limit questioning during voir dire may be reviewed only to determine whether such a restraint amounts to an abuse of discretion. Smith, 703 S.W.2d at 643.

We reaffirmed the test for reviewing a trial court’s restriction of voir dire in Smith at 643:

... [T]o show an abuse of discretion, a defendant must demonstrate that the question he sought to ask was proper. If the question was proper and the defendant was prevented from asking it, then harm is presumed because the defendant could not intelligently exercise his peremptory challenges without the information gained from an answer.

A question is proper if its purpose is to discover a juror’s views on an issue applicable to the case. Smith, 513 S.W.2d at 826 and Mathis, 322 S.W.2d at 632. We have specifically held that whether a juror is challengeable for cause on the grounds that he or she is biased against any of the law upon which the defendant may rely is an applicable issue to the case and queries relating thereto are proper. Smith, 513 S.W.2d at 826 (defendant sought to ask the jury panel whether they could consider probation as a proper punishment in a prosecution for murder).

In Martinez v. State, 763 S.W.2d 413 (Tex.Cr.App.1988), we held that the juror who, upon returning a guilty verdict in a capital murder case, would automatically answer “yes” to special issue one, inquiring whether the defendant’s conduct was deliberate, was challengeable for cause for harboring a bias against the law since “such a position manifests an inability, once the issue of guilt has been resolved against an accused, to reconsider guilt evidence for whatever probative value it will have in the particular context of the first punishment issue.” Martinez, 763 S.W.2d at 415.

In Gardner3, we held that:

Ordinarily we would be constrained to hold that ... it is not an abuse of discretion to prohibit questioning of veniremen regarding terms which, having no statutory definition, are left to the juror’s understanding based upon common meaning and usage, at least so long as the prohibition is imposed in the interest of reasonably limiting the already lengthy capital voir dire procedure. On the facts of the instant case, however, we find that any interest the trial court might have had in limiting voir dire was clearly outweighed by appellant’s right to interrogate venireman Kirklin [concerning whether she would automatically answer special issue one affirmatively after having found that the defendant intentionally committed capital murder].

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Footnote 7. Counsel for the appellant and the State were apparently of the view that they were legally prevented from ever inquiring as to a venireman’s understanding of the meaning of the “deliberate.” We know of no authority in statute or caselaw to substantiate this notion.

Id. at 684 and 688. Therefore, an attempt to ascertain whether a juror maintains such a position is unquestionably a proper matter for inquiry during a capital murder voir dire.

In the present case, applicant’s desired line of questioning was proper. In asking whether a prospective juror could ever answer “no” to special issue one upon returning a guilty verdict, applicant effectively sought to determine if the juror would automatically answer “yes”, thereby demonstrating a bias against the law and grounds for a challenge for cause. We have consistently held that the right to representation as afforded under Article I, Section 10 of the Texas Constitution includes the right to properly question prospective jurors during voir dire in order to effectively exercise peremptory challenges or to establish a predicate for a challenge for cause. Gardner, 730 S.W.2d 675, Smith, 703 S.W.2d 641 and Mathis, 322 S.W.2d 629. Thus, applicant’s right to question prospective jurors was limited in such a way as to violate his constitutional rights. We hold, therefore, that the trial court abused its discretion in disallowing applicant’s question.

The State contends that even if “constitutional” error was committed by the trial judge, such error was harmless, notwithstanding the language of Smith, 703 S.W.2d at 643, which presumes harm once it is determined that the defendant was prevented from asking a proper question. The State relies on Gardner, 730 S.W.2d 675, wherein we found an abuse of discretion in disallowing the defendant to pose a similar question to the one in the present case, yet found no harm. We distinguished the facts of Gardner from cases like Smith and the present case in Gardner itself, stating:

In Smith v. State, 703 S.W.2d 641, Powell v. State [631 S.W.2d 169 (Tex.Cr.App.1982)], the two Mathis cases [Mathis v. State, 576 S.W.2d 835 (Tex.Cr.App.1979) and Mathis v. State, 167 Tex.Cr.R. 627, 322 S.W.2d 629 (1959)], and in Campbell v. State, 685 S.W.2d 23 (Tex.Cr.App. 1985), the defendant was prevented from posing a proper question to the entire' jury panel, not simply a single venireman. In that event it is clear that encroachment upon the right to representation of counsel under Art. I, Section 10 of the Texas Constitution, see Mathis, 322 S.W.2d at 631, has infected the entire process of jury selection. The harm is manifest. In Smith v. State, 513 S.W.2d 823, the defendant complained he was prevented from posing a proper question during the individual voir dire of twelve separate venireman [sic]. Again, in that event the harm would be evident.

By contrast, in this case the error infected the voir dire of but a single venireman. Because appellant was awarded additional peremptories, the infection was cured.

Gardner, 730 S.W.2d at 690, n. 9 (emphasis added).

In the present case, applicant was prevented from asking a proper question of thirty-five veniremen, approximately half of the entire venire. The trial court abused its discretion by improperly limiting the scope of voir dire questioning. Since applicant was not allowed to question thirty-five veniremen and thirty-five additional per-emptories were not granted, Gardner is clearly distinguishable, and the harm is manifest.

Still, does this “constitutional” error rise to the level of error cognizable by writ of habeas corpus?⁴ In further considering this question, we remember that in dealing with procedures for imposing the death penalty, the United States Supreme Court has invariably recognized the heightened need for assurances that the requirements of due process are followed in a capital case. In Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), a majority of the Supreme Court held that the North Carolina mandatory death penalty statute was unconstitutional because it “failjed] to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death,” observing that “death is a punishment different from all other sanctions in kind rather than degree.” Woodson at 2991. The Court further stated:

While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.

This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.

Id.

In Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), the Supreme Court granted certiorari to determine whether a sentence of death could be constitutionally imposed after a jury verdict of guilt in a capital case when the jury was not permitted to consider a lesser included noncapital offense and when the evidence would have supported such a verdict. The Court again recognized that “there is a significant constitutional difference between the death penalty and lesser punishments” and held that “if the unavailability of a lesser included offense instruction enhances the risk of unwarranted conviction, Alabama is constitutionally prohibited from withdrawing that option from the jury in a capital case.” Beck at 2390. More significantly, however, the Court noted that “we need not and do not decide whether the Due Process Clause would require the giving of such instructions in a noncapital case.” Beck at 2390, fn. 14 (emphasis added), again implicitly emphasizing a difference in the severity of punishment for capital offenses and lesser offenses.

In Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), the Supreme Court reviewed the constitutionality of a trial judge’s use of a presentence investigative report in deciding to overrule a jury recommendation that a defendant get a life sentence for first-degree murder, instead imposing death. The report was undisclosed to the defendant. The Supreme Court held that in light of the constitutional developments recognizing that death is a different kind of punishment from any other and that the sentencing process, as well as the trial itself, must satisfy due process, the use of the undisclosed information was not constitutional. In its discussion of the justifications offered by the State, the Supreme Court rejected several reasons on the ground that while the use of such information may satisfy the requirements of due process in a noncapital case, its use was not constitutional in a case where the death penalty is invoked. Id.

We find the reasoning in the above-cited cases compelling in the instant case. Applicant was tried for and convicted of capital murder, the only offense under our penal code subjecting a defendant to the possibility of receiving the death penalty. Indeed, applicant was sentenced to die. In reviewing the constitutionality of our sentencing scheme in death penalty cases, the Supreme Court of the United States held that because the submission of the special issues provided in Art. 37.071, V.A.C.C.P., guided the jury in determining whether to impose death, such a scheme was constitutional. Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). With regard to special issue number one specifically, this Court held that the question of deliberateness posed in special issue one did not turn upon a finding that a defendant committed the capital offense “intentionally or knowingly.” Heckert v. State, 612 S.W.2d 549 (Tex.Cr.App.1981). Judge Tom G. Davis explained in Heckert:

If this Court were to adopt appellant’s argument that deliberately and intentionally or knowingly were linguistic equivalents, it would render Art. 37.071(b)(1), supra, a nullity. Under such a holding, Art. 37.071(b)(1), supra, would be a useless thing in that a finding of an intentional or knowing murder would be irreconcilable with a finding that the defendant’s conduct was not committed deliberately. We will presume that the Legislature would not have enacted Art. 37.-071(b)(1), supra, had it intended for a finding of deliberateness to be based on the same standard as that of intentional or knowing.

Id., at 552-553.

Thus, a juror who would equate these terms by automatically finding the defendant’s conduct deliberate upon a finding that it was intentional or knowing would render special issue one a “nullity.” To allow such a juror who is obviously not guided by the special issues in determining punishment would undermine the constitutionality of our sentencing scheme. Jurek, 428 U.S. 262, 96 S.Ct. 2950.

As the discussion above reveals, the question applicant sought to ask during voir dire went to the very heart of our capital murder sentencing scheme, and necessarily had an impact on whether this particular jury would automatically, as opposed to discretionarity, answer the special issues affirmatively and require the trial judge to impose a sentence of death. Given the nature of applicant’s claim and the heightened need for due process standards to met in death penalty cases, we hold that applicant’s claim is cognizable via an application for writ of habeas corpus.

To reiterate: The trial judge committed error in denying the requested voir dire questioning; the error was of a Texas constitutional dimension; this is a capital murder case where the death penalty was imposed; and the error went to the heart of the decision making process used in arriving at the death penalty; thus, in this instance, this type of error is cognizable by writ of habeas corpus. Applicant has supplied facts which prove the error merits relief as required by Maldonado, 688 S.W.2d at 116.

Therefore, the relief sought is granted. The judgment in Cause No. 80164 is set aside and applicant is ordered released to the Sheriff of Dallas County to answer the indictment in this cause. A copy of this opinion will be furnished the Texas Department of Criminal Justice, Institutional Division, by the Clerk of this Court.

DAVIS, J., not participating. BERCHELMANN, J., dissents.

1 . Applicant raises ten (10) grounds for relief in his writ application.

2 . We recently addressed the propriety of running objections to preserve error in Sattiewhite v. State, 786 S.W.2d 271 (Tex.Cr.App.1989), wherein we held "as long as the running objection constituted timely objection, stating the specific grounds for the ruling, the movement desired the court to make (if the specific grounds were not apparent from the context of the running objection) then the error should be deemed preserved by an appellate court.” 786 S.W.2d at 283, n. 4.

3 . The instant case was tried in 1982, five years before our decision in Gardner was rendered.

4 . The concurring opinion suggests that at this juncture we should determine "whether by any other measure the error is such as to void the conviction,” concurring opinion, page 486. We are then faulted for not undertaking this admittedly daunting "enterprise." We are given no hint as to the nature or character of these "other measures.” We note that criticism of this Court’s past attempts to elucidate the concept of habeas cognizability is as easy as the attempt to define it has been difficult (see discussion, supra, opinion at page 481-82). We would have appreciated the concurring opinion had the criticism been more constructive and suggested just what the concept of habeas cognizability should mean in the future.